tag:blogger.com,1999:blog-226690016900160196.post7848159283553771297..comments2017-08-17T13:50:49.025-04:00Comments on Legal History Blog: Domestic Partner Benefits in PerilSmita Ghoshhttp://www.blogger.com/profile/02062210254958869772noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-226690016900160196.post-57316229655610285812012-09-04T20:29:32.593-04:002012-09-04T20:29:32.593-04:00Thanks. I think we need to distinguish among (1) ...Thanks. I think we need to distinguish among (1) laws that penalize people for cohabitating; (2) laws that deny people benefits for cohabitating that they&#39;d get if they were married (e.g., public employee health benefits); (3) and private actions that discriminate against cohabitating couples (refusing to rent to them, denying private company insurance benefits, refusing to allow your cohabitating children to sleep together when visiting your house).<br /><br />The case for prohibiting (1) seems strong on the basis of the right to privacy. (2) less so. (3) not at all. <br /><br />Thanks again for your response, I do think it makes your case stronger if you don&#39;t simply assume that your readers are offended by (2) and (3).David Bernsteinhttps://www.blogger.com/profile/12672281130425786127noreply@blogger.comtag:blogger.com,1999:blog-226690016900160196.post-56073515246478697942012-09-04T16:12:30.080-04:002012-09-04T16:12:30.080-04:00The argument in favor of promotion of marriage or ...The argument in favor of promotion of marriage or special privileges for marriage is indeed that (legal) marriage is the foundation of society, that marriage promotes stability,that it is good for children,that it is based on religious beliefs in the sanctity of marriage. <br /> As one might expect, the arguments on behalf of rights for cohabitors have evolved and closely track the evolution of liberalism, privacy rights, and the use of the 14th amendment to argue for rights. <br /> 1. The main argument of Marvin v. Marvin(1976) was a version of liberalism, that law had to evolve to keep up with new patterns of behavior and that the law could not be used to police morality because moral standards were diverse and changing.<br /> 2. The main argument of domestic partnership legislation is a version of the&quot;new&quot; common law, that relationships should be judged on the basis of function, not form, and that many cohabiting relationships, if analyzed based on function, would fulfill the same public and private functions as legal marriage.<br /> 3. Some state courts have ruled that housing discrimination against cohabitors constitutes &quot;marital status discrimination,&quot; prohibited under state law.<br /> 4. Lawrence v. Texas (2003) has been used to rule that criminal penalties against cohabitation are unconstitutional. Lawrence is usually seen as asserting a right to freedom of association and has been applied to cohabitation as well as homosexual relations conducted in private.<br /> 5. Just as the argument for same-sex marriage, as in Perry v. Schwarzegger, is a 14th amendment argument, so, too, the argument for rights for cohabitors is that to treat them differently is a deprivation of due process and equal protection of the law. <br /> 6. In most European and Commonwealth countries, cohabitants have greater legal rights and access to greater entitlements than in the U.S. <br /> Because of concern about fraud, employers ask domestic partners to file an affidavit or proof of domestic registration. Marriage is by no means a fraud-free institution; in fact, &quot;sham marriage&quot; refers to the practice of entering into legal marriage for fraudulent purposes. See Ariela Dubler, &quot;Immoral Purposes: Marriage and the Genesis of Illicit Sex, 115 Yale Law Journal 75 (2006).Elizabeth Pleckhttps://www.blogger.com/profile/07799606455679442403noreply@blogger.comtag:blogger.com,1999:blog-226690016900160196.post-5049924585129296492012-09-04T10:19:57.189-04:002012-09-04T10:19:57.189-04:00Is there some particular reason (preferably someho...Is there some particular reason (preferably somehow related to legal history) that people who choose not to make a binding legal commitment to each other should get the same rights as privileges as those who do? I&#39;m certainly open to the argument, but you seem to assume that your readers will think this is obviously true, and it&#39;s not. The counter-argument is easy: society has an interest in encouraging marriages, because marriages are less likely to break up than cohabitation, and family stability is good for society. W/r/t to health benefits, there is also a significant element of fraud prevention involved--anyone can claim to have cohabitator, but marriage is rather harder to fake.David Bernsteinhttps://www.blogger.com/profile/12672281130425786127noreply@blogger.com